September 29th, 2017
Mr. Ed Roberson
Director, Utah State Office Bureau of Land Management 440 West 200 South, Suite 500
Salt Lake City, UT 84101
Re: Protest of Five Parcels Proposed for Utah BLM’s December, 2017 Oil & Gas Lease Sale
Dear Mr. Roberson:
Pursuant to 43 C.F.R. §§ 3120.1-3 and 4.450-2 the National Parks Conservation Association (“NPCA”) protests the following parcels (“Protested Parcels”) proposed for the Utah Bureau of Land Management’s December, 2017 Oil and Gas Lease Sale:
STATEMENT OF INTEREST
The mission of the National Parks Conservation Association (NPCA) is to protect and enhance America’s National Park System for present and future generations. Founded in 1919, NPCA is the leading citizen voice for the national parks. We are a national non- profit with 27 regional and field offices across the country, including our Southwest Regional office in Salt Lake City, Utah and Southwest Energy office in Grand Junction, Colorado. NPCA represents over 1.3 million members and supporters who care about America’s shared natural and cultural heritage preserved by the National Park System.
With nearly 1,400 members, the Coalition to Protect America’s National Parks (Coalition) is composed entirely of retired, former, or current employees of the National Park Service. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group, we collectively represent more than 35,000 years of experience managing and protecting America’s most precious and important natural and historic places.
A top priority for NPCA and the Coalition is protecting the resources within parks, the larger landscapes in which they are embedded, and the air and water on which they depend, in order to enhance their ecological and cultural integrity. Poorly planned oil and gas development on the landscape adjacent to national park units can result in significant impacts on national park resources including soundscapes, night skies, air quality, and water quality and quantity. Due to the level of oil and gas development occurring across the Intermountain Region of the National Park System, we are working together to ensure that oil and gas development near national park units is planned with consideration and care for the many non-drilling uses of the land and that the impacts on national park units from resource extraction in the area are considered.
It is critical that the BLM continue to seriously weigh the many non-drilling uses of their shared landscapes, including the protection of the ecological, cultural, geological, recreational, scenic and economic attributes near Dinosaur National Monument. NPCA and the Coalition are particularly concerned with the level of consideration the BLM gave to analyzing and mitigating potential impacts on night skies, natural sounds and visitor experience related to parcels near Dinosaur National Monument.
The National Park Service (NPS), State of Utah, and the US Fish and Wildlife Service, requested that the BLM re-evaluate or consider deferring lease parcels near Dinosaur National Monument in order to acquire and analyze new information related to visual and sound disturbance potential. NPCA and the Coalition urge the BLM to defer nominated parcels 063, 064, 065, 067 and 071. The leases individually and collectively pose direct and cumulative threats to Dinosaur National Monument. Moving forward with leasing as proposed will have deleterious and potentially unsafe impacts — not only to the park and its visitors, but also to the area’s water, wildlife, air quality and cultural and paleontological heritage, among other resource values.
NPCA participated in the planning process for this lease sale by filing comments, dated July 24, 2017. Likewise, the Coalition participated in the planning process for this lease sale by filing comments, dated July 21, 2017. We have attached copies of both sets of comments to this protest letter and hereby incorporate them by reference.
AUTHORIZATION TO FILE THIS PROTEST
David Nimkin is the Senior Regional Director for the Southwest Region of NPCA. In that capacity, he is authorized to file this protest on behalf of the organization and its members.
Maureen Finnerty is the Chair of the Coalition to Protect America’s National Parks. In that capacity, she is authorized to file this protest on behalf of the organization and its members.
STATEMENT OF REASONS
Because the BLM failed to comply with the National Environmental Policy Act (“NEPA”) and Instruction Memorandum (“IM”) 2010-117, it must defer the protested parcels from the lease sale.
I. THE EA DOES NOT COMPLY WITH THE NATIONAL ENVIRONMENTAL POLICY ACT.
The EA does not take the required “hard look” at the impacts of leasing the protested parcels near Dinosaur National Monument. Specifically, the BLM did not evaluate potential impacts on the monument’s soundscape, night skies and entrance road, all of which could drastically alter the visitor experience.
First, the BLM did not take a “hard look” at the potential impacts on the monuments soundscape. 42 U.S.C. § 4332(C); Great Basin Res. Watch v. BLM, 844 F.3d 1095, 1101 (9th Cir. 2016). NEPA requires agencies to undertake thorough, site-specific environmental analysis at the earliest possible time and prior to any “irretrievable commitment of resources” so that the action can be shaped to account for environmental values. Pennaco Energy, Inc. v. U. S. DOI, 377 F.3d 1147, 1160 (10th Cir. 2004). Oil and gas leasing without a No-Surface Occupancy stipulation is an irretrievable commitment of resources. S. Utah Wilderness All. v. Norton, 457 F. Supp. 2d 1253, 1256 (D. Utah 2006). Thus, NEPA establishes “action-forcing” procedures that require agencies to take a “hard look,” at “all foreseeable impacts of leasing” before leasing can proceed. Center for Biological Diversity v. United States DOI, 623 F.3d 633, 642 (9th Cir. 2010); N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 717 (10th Cir. 2009).
The National Park Service manages park units to protect natural, cultural, and historic sounds they consider fundamental to the purposes and values for which the parks were established NPS Management Policies 2006, § 4.9, § 18.104.22.168, and §8.2.3. The NPS Natural Sounds Program mission is “…the protection, maintenance, or restoration of the natural soundscape resource in a condition unimpaired by inappropriate or excessive noise sources. Directors Order #47, Dec. 1, 2000. NPS has listed degradation of natural soundscapes as a key issue for Dinosaur National Monument, particularly in reference to outside development from oil and gas. NPS Scoping Comments on the Proposed December 2017 Competitive Oil and Gas Lease Sale Parcels (3100/UT922), May 1, 2017 at 41. The BLM failed to thoroughly analyze the specific and cumulative impacts to the natural soundscape of Dinosaur National Monument, and ensure that development would not run counter to the park’s soundscape management priorities before leasing parcels for oil and gas development.
Currently, stipulation UT-S-168 Controlled Surface Use – Light and Sound: Areas Adjacent to Dinosaur National Monument only applies to parcel 071, despite additional parcels being within the viewshed of Dinosaur National Monument. This stipulation, which requires setting minimum ambient noise background level changes, or requiring the use of noise-minimizing best available technologies like hospital grade sound reducing mufflers, multi-cylinder pumps, or placement of exhaust systems to direct noise away from sensitive receptors, should be applied to other protested parcels within the Dinosaur viewshed.
The inadequacy of UT-S-168 on parcel 071 is enhanced by the loss of another stipulation, UT-S-157: No Surface Occupancy/Controlled Surface Use/Timing Limitation – Visual Resource. This stipulation was included in the preliminary EA on the protested parcels, but was inexplicably absent in the final version. As laid out in the Vernal RMP, this stipulation could have helped minimize the visual impacts of development in various VRM classes on protested parcels. In its place, the BLM added a stipulation covering steep slopes to parcels 071 and 064: UT-S-96: No Surface Occupancy – Fragile Soils/slopes Greater than 40 %. However, there are no slopes greater than 40% on those two parcels (see attached Slope Map), rendering the added stipulation of no effect.
Second, BLM failed to fully evaluate the direct, indirect and cumulative impacts of lease 071. To adhere to NEPA, the BLM is required to thoroughly analyze impacts to the environment of any of its proposed actions. 42 U.S.C. § 4332(C); Great Basin Res. Watch v. BLM, 844 F.3d 1095, 1101 (9th Cir. 2016). Analysis includes leasing of parcels with surface disturbances, which is required when developing conventional methods to extract oil and or gas. The National Park Service raised concerns on similar grounds, noting in their August 22, 2017 comment letter that, “[a]ny surface disturbance in parcel 071 could potentially have effects on water quality in the Green River.” NPS Comments on the Environmental Assessment for the December 2017 Oil and Gas Sale (DOI-BLM- UT-GO10-2017-0028-EA), August 22, 2017.2
Third, the BLM failed to adequately evaluate impacts on the monument’s night skies and viewshed. This is especially critical because all of the NPCA protested parcels lie within the viewshed of Dinosaur National Monument, many of them within direct view of Dinosaur National Monument’s most visited locations, the visitor center and world famous Carnegie Fossil Quarry. The EA fails to quantify or project what impacts to viewshed, light and sound pollution would look like. In the EA the BLM explicitly states that it cannot, “quantify and analyze the effects of soundscapes and night skies within Dinosaur National Monument,” instead stating that analysis of said impacts occurs at the APD stage. Final EA, p. 248 (“…until there is a specific project proposal to develop and produce the mineral resources in parcel 071, the BLM is unable to specifically quantify and analyze the effects to soundscapes and night skies within Dinosaur National Monument.”; see New Mexico ex rel. Richardson v. BLM, 565, F.3d 683, 718-19 (10th Cir. 2009)) However, “…there is no bright line rule that site-specific analysis may wait until the APD stage.” Id. The APD stage presents little or no legal authority to mitigate the impacts of artificial lighting required for oil and gas drilling, on a specific lease like 071 or on a cumulative scale.
In reference to specific impacts on parcel 071, the BLM notes that it again is unable to determine the impacts from light pollution via flaring, stating they “currently cannot project whether flaring would be necessary or appropriate for this particular parcel because it is unknown whether the target resource would be oil or gas (the BLM would not authorize production flaring for a gas well, although the BLM would consider production flaring for an oil well).” Final EA, p. 248. This broad assumption lacks nuance and the could be determined by analyzing varying likely scenarios that could provide key data into how Dinosaur National Monument would be impacted if flaring occurred during the exploration state of development.
Similar logic is used when the BLM fails to analyze impacts from sound pollution on Dinosaur National Monument soundscapes. Noting, in the Final EA, page 248, “…the BLM cannot currently determine exactly where development would occur and whether the resulting truck traffic would be audible from locations within Dinosaur National Monument…” While it is understood that exact location of the well pad is determined at the APD stage, the BLM could have included baseline impacts from one or more locations in parcel 071 and used that data to document the potential impacts from lease 071 and factor this data set into cumulative analysis. Detailed analysis like this would assist in determining if parcel 071 should be deferred for further analysis or if the data and modeling would prompt the preparation of an environmental impact statement.
Fourth, the BLM did not adequately evaluate potential impacts on the monument’s entrance road UT HWY 149 (and associated visitor experiences), even though UT HWY 149 is the primacy access point to parcel 071, and within close proximity to the monument and within its viewshed, according to NPS viewshed analysis. Thus, for the foregoing reasons, the BLM failed to evaluate the impacts of the protested parcels on Dinosaur National Monument. Instead, the BLM simply discounted access issues and adopted mitigation in the EA, in the form of a lease notice, without ever documenting potential impacts on the monument and developing management alternatives, as required by NEPA.
Fifth, the BLM does not adequately address the cumulative impact to outdoor recreation, the tourism economy attached to Dinosaur National Monument or the visitor experience. The EA fails to adequately acknowledge or analyze reasonably foreseeable impacts from oil and gas development on the economy and the quality of the recreation experience for visitors to Dinosaur National Monument. The monument is home to diverse flora and fauna, which are interconnected with and dependent upon neighboring public lands and waterways. Healthy wildlife and natural resources are also core to the experience of those who recreate in or visit the monument.
Visitors accessing the heart of the park’s wilderness from UT HWY 149 are most likely to be seeking naturalness, solitude, and primitive, unconfined recreation. The visitor experience will be marred by any level of increased industrial truck traffic, obstruction of scenic views, and increased background noise. The industry standard, based on an EPA study, for developing an average well requires 400-1400 trips from heavy-duty trucks during the exploratory and construction phases3. In addition, production and maintenance requires additional light and heavy-duty traffic for the life of the well, or until the developer relinquishes its right to the lease. Industrial truck traffic will increase noise, dust, and pollution, cause damage to roads, create safety concerns for visitors to the park, and diminish the monument visitor experience.
The National Parks of Utah draw millions of visitors from around the world each year and drive an economy that has seen rapid growth in recent years. In 2016, the National Park Service Visitor Spending Effects Report showed that 304,312 visitors to Dinosaur National Monument spent over $18 million dollars in communities near the park. 2016 National Park Visitor Spending Effects, Natural Resource Report NPS/NRSS/EQD/NRR—2017/1421. In turn, that spending supported nearly 250 jobs in the local area and had a cumulative benefit to the local economy of over $20 million. From 2015 to 2017 alone, Dinosaur National Monument generated more than $1 million in new local economic stimulus annually. As part of the larger national park’s economy in Utah, Dinosaur contributes to a $1.3 billion economic engine that is responsible for 11,000 jobs. Leasing the protested parcels for development in northeastern Utah will damage the visitor experience and the sustained economic growth from increased visitation.
Finally, the BLM does not adequately address cumulative impacts to air quality and its impact to Dinosaur National Monument. The EA makes reference to the Class I air standing designation under the EPA for wilderness and ‘national parks’ (Dinosaur National Monument is designated Class II airshed) in the area, however does little in regard to mitigate for violations of these air quality standards, noting, “At present, control technology on some emissions sources (e.g. drill rigs) is not required by regulatory agencies.” The EA goes on to list “Possible Future Best Management Practices” as a standard for mitigation, with laissez-faire statements that as an agency unable to enforce. A 2017 Government Accountability Office Study notes, “…BLM is unable to fully assess the effectiveness of its best management practices policy to mitigate environmental impacts.” An example, “The BLM encourages industry to incorporate and implement BMPs to reduce impacts to air quality through reduction of emissions, surface disturbances, and dust from field production and operations.” Best Management Practices are not an effective mitigation tool4, and “encouraging” does little to provide certainty that these tools will be utilized, in any case. An array of monitoring, modeling and predicting has little worth when the tools to enforce, mitigate and implement are not adequately addressed in the EA, thus leaving Dinosaur National Monument – as well as numerous Class I designated national parks in the Colorado Plateau – vulnerable to potentially unsafe, well documented poor and in potentially non- ozone attainment air quality conditions.
The duty of the Secretary of the Interior to protect and preserve national park units unimpaired is non-discretionary. 54 Sec. 10010 et seq. (1916). While the Department is charged with various, sometimes-competing responsibilities, Solicitor Opinion M-36993 makes clear that that the protection of national parks is paramount: “The Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever action and seek whatever relief as will safeguard the units of the National Parks System.” Solicitor John Leshy citing S. Rep. No. 95-528, at 8, 9, 13-1. The analysis of multiple, minor sources of pollution are individually not problematic. Collectively, however, they pose a significant threat to the Monument’s and other national parks’ air quality and visitor experience, and therefore require deferral of the protested leases and further consultation with NPS to ensure prioritization of the protection of Dinosaur National Monument.
II. THE BLM FAILED TO CONDUCT NECESSARY PLANNING NEAR DINOSAUR NATIONAL MONUMENT.
The BLM has repeatedly acknowledged that it lacks appropriate planning for public lands leasing around Dinosaur National Monument. A joint report from the BLM and the National Park Service (NPS) in 2009 known as the Stiles Report, which made recommendations based upon “concerns raised about the adequacy of the consideration given to important values … such as sensitive landscapes and cultural resources” resulting from a Utah BLM lease sale in 2008. Final BLM Review of 77 Oil and Gas Lease Parcels Offered in BLM-Utah’s December 2008 Lease Sale, October 7, 2009 at 2. Collaborative planning in the area around Dinosaur National Monument was necessary “to avoid repetitive requests for leases in inappropriate locations immediately adjacent to the park, especially in the viewshed of the new planned visitor center and entrance road.” Id. at 26.
Instruction Memorandum (IM) 2010-117, issued in part as a response to the issues identified in the Stiles Report, requires the preparation of Master Leasing Plans (“MLPs”) to resolve resource conflicts in sensitive areas under certain criteria. In 2010, the BLM Vernal Field Office determined that a proposed area adjacent to Dinosaur National Monument met the criteria and qualified for MLP analysis, and that [a]dditional analysis or information is needed to address likely resource or cumulative impacts if oil and gas development were to occur.” Vernal MLP Assessment5 at pages 1 and 3. Despite these assertions, the BLM did not undertake any additional planning to minimize the impacts to Utah’s portion of Dinosaur National Monument.
National Park Service concerns remain. In particular, NPS staff noted in May 2017 scoping comments that they are “concerned about potential impacts to the monument’s resources and visitor experiences that could result from exploration and development operations subsequent to leasing of the parcels, particularly parcels located near the western boundary and Green River District Entrance Road in Jenson Utah and southeastern boundary and Canyon Visitor Center in Dinosaur Colorado.” NPS Scoping comments at 2. The NPS specifically noted concerns for Air Quality and Air Quality Related Values, Viewsheds, Dark Night Skies, Natural Soundscapes, and Endangered, Threatened and Sensitive Species in its comments. Id. Additional planning determined as required by the BLM could have addressed these concerns not just in the limited area comprising this Dec. 2017 lease sale, but also for the entire planning area originally identified by the BLM. Concerns with leases near the Monument, as addressed by NPS, NPCA and others, could be resolved through inclusive landscape level master lease planning or a similar process, and could coordinate with stakeholders to resolve other potential conflicts on the landscape.
The EA for the December 2017 lease sale notes “Rather than deferring nominated parcels in intended MLP areas, parcels received as expressions of interest were forwarded to the field office to conduct appropriate environmental analysis to ensure environmentally responsible leasing of oil and gas resources on federal lands. Evaluation of the parcels will be based on the governing land use plans and site specific NEPA analysis.” This lease-by-lease analysis fails to account for cumulative impacts of development, constricts stakeholder input, and undermines larger landscape level planning efforts contained within master lease planning. It is the inclusive nature, cumulative study and analysis undertaken by master lease planning that reduces future conflicts and allows for responsible development of oil and gas resources near sensitive areas. These key elements of planning are not included in the current environmental analysis.
IM 2010-117 also requires the BLM to ensure that “management decisions identified in the RMP (including lease stipulations) are still appropriate and provide adequate protection of resource values (including, but not limited to, biological, cultural, valuate whether oil and gas visual, and socioeconomic resource values).” As explained above, the Vernal RMP does not address, let alone “provide adequate protection” for a number of resources in Dinosaur National Monument, particularly viewshed. Thus, while we support the BLM’s recognizing the monument’s viewshed and night sky resources through some stipulations and the development of lease notices, we believe that the BLM was required by IM 2010-117 to defer the protested parcels from the lease sale and perform a more thorough analysis of potential impacts on night skies and mitigation alternatives, including possible lease stipulations.
Thank you for the opportunity to file this protest. NPCA and the Coalition to Protect America’s National Parks respectfully requests that the BLM defer the protested parcels from the December 2017 lease sale, pending further evaluation of potential impacts on Dinosaur National Monument.
David Nimkin, Senior Regional Director National Parks Conservation Association
Maureen Finnerty, Chair
Coalition to Protect America’s National Parks